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July 6, 2011

Imagining a (sound and satisfying?) sentencing script in the Casey Anthony case

With Casey Anthony's sentencing coming up tomorrow, and with so many apparently unsatisfied with her acquittal on all the felony counts she was facing, I have now been thinking a lot about what could and what should happen at her sentencing on the four misdemeanor convictions based on her lies to the police.  Specifically, I wonder what folks would think if this is what we were to hear from Judge Perry at sentencing for Casey Anthony:

Ms. Anthony, I respect the jury's verdict of not guilty of all the felony counts against you relating to the death of your daughter.  However, the lies for which you were convicted by this same jury were not merely run-of-the-mill statements of false information to the police.  Rather, they were knowing and willful false statements to the police while they were investigating the disappearance of your own daughter. 

These many false statements to investigators for which you stand convicted may well have delayed greatly the effort to discover just how and when your daughter died.  In addition, these false statements, as well as the evidence presented at trial, leave me with a firm conviction that you had some role in the death, or at the very least in the cover-up of the circumstances of the death, of your young daughter.   Consequently, because I view the nature and circumstances of your false statements to be highly aggravated, I have decided to impose the maximum sentence allowed for your crimes of conviction under Florida law.

Ms. Anthony, you shall serve a year in prison for each of your four false statement convictions, to run consecutively.  With credit for time served, you shall be imprisoned until October 2012.

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July 6, 2011 at 12:05 PM | Permalink

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Comments

It sounds like you are giving her the max because she was acquitted.

Posted by: Rob | Jul 6, 2011 12:31:39 PM

I think even if she were to get 4 years, max consecutive, that would be a huge break for her - getting out in Oct. 2012 wouldnt be so bad. If I were her attorney I would most definitely would have advised her in the start that this verdict would be the best possible of all verdicts.

Sincerely,

Joseph C. Patituce
Patituce & Associates, LLC
Federal Defense

Posted by: Joe Patituce | Jul 6, 2011 12:45:28 PM

It sounds reasonable, but I doubt it will happen. It's a weak gesture to give her the max on misdemeanors as a form of "justice" for her role in the killing, and I suspect the judge wants done with it.

Nothing can be done at sentencing to put right the fact that the jury took a walk. The country has had to live with the sick joke of OJ, and it will have to live with OJ redux. Whether in dealing with erroneous acquittals or erroneous convictions, adults have no choice but to accept fallibility as part of life, and vow to do better next time.

P.S. I wonder whether Casey Anthony will wind up doing a spread for Hustler, or a reality TV show, or something along those lines. I very much doubt we're heard the last of her, either in the media or on the police blotter. Her "values," and I use that word advisedly, are a perfect match for a degraded culture. Maybe she can do a Dear Abby advice column with Anthony Wiener and John Edwards. They can have guest pieces by Blago.

Posted by: Bill Otis | Jul 6, 2011 12:50:48 PM

Prof. Berman, I respectfully disagree. How is what you suggest any different than the current (abhorrent) practice of using acquitted conduct to increase a sentence at a federal sentencing? If Ms. Anthony has been acquitted, she is acquitted -- and should not see any enhancement in her other sentences because of that alleged and insufficiently proven conduct. She may or may not be completely innocent -- but she was not proven guilty by proof beyond a reasonable doubt. Therefore, her punishment should not be increased as though she were.

Posted by: MMG | Jul 6, 2011 1:00:09 PM

I think you can safely give her the maximum sentence for lying to authorities, since the lies were told while authorities were investigating the death of a child. Add the check fraud charges and she could spend a little over a year in jail. Seems pitifully light, but you can't give her life for this stuff.

Posted by: MikeinCT | Jul 6, 2011 1:45:34 PM

And the defense could argue (in addition to the pending consolidation motion because it was one count of a continuing act and not 4 counts):

Your Honor, we agree that lying to the police during a missing child investigation is horrendous and wastes a multitude of resources, but we respectfully submit that the state of Florida already punished her by making her fear for her life every day for the last three years though she was not guilty. And the media, initially involved in an Amber Alert, subsequently found her guilty of murder on a daily basis. The media still finds her guilty and blames the jury, the prosecution, the burden of proof being too high, the CSI effect * or the defense. Indeed, there are now legitimate fears for her safety. For these reasons, time served is sufficient, but not greater than necessary.

If there was any CSI effect, it was in the computer forensic evidence when the prosecution tried to claim 84 searches for chloroform where there was actually only one. Indeed, time spent online for chloroform and other shady searches was only 3 minutes. What's more, these searches were contemporaneous with her boyfriend having a picture captioned with "Win her over with chloroform." Hardly proof of premeditation. Ain't if funny that after all the death row exoneration so many still believe the only reason someone was found not guilty was because of some flaw in the system?

Posted by: Dude | Jul 6, 2011 1:48:25 PM

I think Rob and MMG are missing the nuance intended by my suggested sentencing script above. I do no mean to suggest or recommend that Casey Anthony now be sentenced as if she were guilty of murdering her child, even if Judge Perry believes she is guilty of murder. Rather, I am trying to give distinct and focused and serious attention to the nature and circumstances surrounding the offenses for which she was convicted --- i.e., lying to investigators in 4 distinct ways about her and Caylee's where-abouts and statements.

The sentencing range provided by Florida law for these lies are up to 1 year imprisonment, suggesting that the state legislature believes that the WORST kinds of lies to authorities ought to be punished by a year in jail. Even if Casey had little or nothing to do with her daughter's death and disappearance, I think it is fair to assert that Casey's lies to authorities while they are desparately looking for Caylee are among the WORST kinds of lies to authorities. Thus, it seems reasonable to sentence her to a year, the max, for each of these lies.

A suggestion/decision to run each 1-year sentence consecutively, especially if that is very uncommon for misdemeanor counts, perhaps might be PERCEIVED as a form of extra punishment because of the Judge's belief she got away with something. But especially if the Judge were to genuinely and sincerely believe she got away with something VERY MUCH BECAUSE of these lies/crimes --- which seems like a plausible finding here --- then I think again one can make a reasoned and reasonable pitch for "maxing out" Casey based on the crimes of conviction.

All of this said, I am neither recommending nor blessing this particular approach to Casey Anthony's upcoming sentencing. Rather, my goal is to highlight the sentencing challenges Judge Perry faces, especially if he genuinely and sincerely believe Anthony got away with something in part because of her lies to authorities. I also hope to stimulate some discussion/debate over whether (and how) the sentencing judge should candidly express in this case the reasons why he will select a particular sentence.

Posted by: Doug B. | Jul 6, 2011 1:53:39 PM


She was looking down the barrel of a death sentence despite a horribly weak State's case. I suspect the judge will give her the max & then suspend the balance & place her on probation. She's going to need some help pulling her life back together after all of this.

Posted by: anon | Jul 6, 2011 2:06:23 PM

anon --

"She's going to need some help pulling her life back together after all of this."

"Help" is not going to strike a lot of people as what Ms. Anthony has earned.

He own parents can't stand her since, among other things, her defense accused her father of being a child molestor and then put on not one word of evidence to back it up.

She lies to eveyone she talks to.

If it's help she's to get, she can supply it herself. The correct reaction to her is shunning. It's not a remedy of the law, but it's all there is left.


Posted by: Bill Otis | Jul 6, 2011 3:30:14 PM

Mr. Bill: "Help" is not going to strike a lot of people as what Ms. Anthony has earned.

True, and one fascinating reveal in this social media interaction is that the presumption of guilt people are extremely vocal and loud. You can read chat after chat that calls for a guilty verdict from the onset of the trial and not much counter argument.

Due process people, almost by definition, do not participate in trial by media, so the debate seems one sided and it is easy to fall victim to the presumption that the vocal and loud are a representative cross section of all the public.

Posted by: George | Jul 6, 2011 4:44:44 PM

A compelling argument for “maxing her out” can be made, without the necessity of saying that she was “probably guilty” of the crime for which she was acquitted. The reasons for a sentence are sometimes just as important as the sentence itself. And to practically everyone, reliance on acquitted conduct just sounds wrong, even if there is a sound legal theory behind it.

Having said that, I agree with Bill Otis that the judge is unlikely to go that route.

Posted by: Marc Shepherd | Jul 6, 2011 4:45:42 PM

George

What you don't get is that she hasn't earned help even if the killing was just the accident her lawyer claims. The parts of her behavior THAT ARE UNDISPUTED show her as a person who ought to be shunned.

You want her? You can have her. Her parents, quite understandably, don't.

Posted by: Bill Otis | Jul 6, 2011 4:57:20 PM

Marc --

I think the reason it sounds wrong to so many people is that they read "not quilty" to mean, in the lay sense, "innocent," while, in law, it means something very different.

Posted by: Bill Otis | Jul 6, 2011 5:00:01 PM

Mr. Bill, here we are at the heart of it. If shunning is a form of torture, or at least the infliction of pain, then we have torture vs constructive compassion (help).

It is not surprising that you would prefer the former. What is the logical conclusion of that? A healthier citizen? What are the consequences of no healthy social interaction? A safer individual? What is the mental stability of one who lacks personal feedback on thoughts and feelings? Will wires become crossed? Whatever you think the goal of shunning would be, why you do think it the only option left and does it lack any unintended consequences at all?

Perhaps you are only able to think in terms of punishment, but that is relatively lazy compared to all the work necessary when helping.

And you may have explained why trial by media are so popular. We can be gods with all these characters on a playing board and we can put words and thoughts and actions into their heads and then exclaim, "Let there be light!" That is exactly what so many in the chat rooms did. With shunning we can create Hell and be God enough to put them there.

Better to shun the shunner philosophy is what I think.

Posted by: George | Jul 6, 2011 5:51:35 PM

@George
She's a self absorbed, manipulative, remorseless person. What kind of help would you give her? If you believe, as I do, that she is guilty than how much worse could she be by being shunned?

Posted by: MikeinCT | Jul 6, 2011 6:02:35 PM

@Bill Otis: I am completely aware of the legal reason for considering aquitted conduct at sentencing, i.e., that the standard of proof at that stage of the proceedings is merely a preponderance of the evidence.

But the law derives its credibility from the fact that ordinary citizens can usually comprehend its logic on a “gut level,” even if they couldn’t explain it in formal terms. That’s why it matters if the reliance on aquitted conduct feels wrong to reasonable people of ordinary intelligence.

Posted by: Marc Shepherd | Jul 6, 2011 6:33:36 PM

MikeinCT, did you watch the trial and see everything the jury did?

Posted by: George | Jul 6, 2011 6:51:51 PM

George --

"If shunning is a form of torture..."

Well, it isn't.

I don't have to associate with those I dislike for any reason whatever. Here, people have ample reason to dislike Ms. Anthony, to wit, the probablility that she killed her kid; the established reality that she's a venal, world class liar; and the fact that her parents, who know her a good deal better than you do, want zip to do with her.

You don't want "constructive compassion." You want to force people to snuggle up to this sleazy (at best) creature, and you want her to bear no accountability for anything she does.

Fine. You snuggle up to her. I respectfully, but certainly, decline.

Posted by: Bill Otis | Jul 6, 2011 6:59:02 PM

Were you arguing a policy or a personal preference? Since "ought to be shunned" suggests what others should do, not what your rights are, that is why I never argued you couldn't shun all you want, not that she will care over there in Hollywood while raking in the $$$.

And I think a total shunning is like banishment, which is like torture, or severe punishment. If only a few do it, not so much. And I'm not sure why you think you can speak for her parents.

Wow, remember when you respected the jury system, oh, a couple of days ago? The SCOTUS should revisit this 1st Amendment free for all right and put a check on trials by media before everyone hates the system and resorts to a Kristallnacht.

Posted by: George | Jul 6, 2011 7:15:02 PM

"law derives its credibility from the fact that ordinary citizens can usually comprehend its logic on a “gut level,” even if they couldn’t explain it in formal terms."

Nailed it, nailed it, nailed it. But, alas, something that Bill will never give any credability. It is also exactly the reason that so many "lay" people are fed up with the governments current approach to criminal justice.

Posted by: Thomas | Jul 6, 2011 8:22:19 PM

I believe I saw enough.

Now can you answer my question?

Posted by: MikeinCT | Jul 6, 2011 10:42:21 PM

had to laugh at the sugestion the judge might try and give her probation. I doubt her lawyers are that STUPID! probation today is NOTHING but a GOTCH sytem of illegal after the fact punishment's for use in cases where the state COULDNT' prove their cases at trial!

Posted by: rodsmith | Jul 6, 2011 10:43:27 PM

The Casey case illustrates the criminal law in failure. Chesty, attractive woman gets away with murder due to the feminist fix in the system. An all out female with the full antisocial personality gets a slap on the wrist. The murder victim is a child, and of no value to the feminists running the criminal law.

Posted by: Supremacy Claus | Jul 6, 2011 11:13:14 PM

Bill/Mike:

The State had their chance at our (mistakes are inevitable) system and they failed! Man up and shake hands and quit believing that you are without sins. Quit believing that legislators and LE are the new GOD. That is called pride and is the Original Sin.

Shun her, illegitimize her, stomp on her, entrap her with the current probation system (an ankle monitor around her neck and if she has to remove it because of battery life and she is choking, give her more time than the maximum of her original crimes because she violated probation). That is OUR system.

No one is incapable of being saved and doing good. That is what we must strive for.

For you also Boug B.

I forgot Bill, I am a miserable creature (a staunch conservative turned libertarian), but I don't see any solutions from you except, (HANG THEM ALL, I KNOW BETTER).

Posted by: albeed | Jul 6, 2011 11:39:22 PM

George --

"Wow, remember when you respected the jury system, oh, a couple of days ago?"

I still do, of course, as I have explained on tonight's entry on Crime and Consequences, http://www.crimeandconsequences.com/crimblog/2011/07/what-can-we-learn-from-casey-a.html

This is good thing, since so many lefty commenters here do NOT respect the jury system, as they have made clear in post after post denouncing the jury as rigged in favor of the fascist prosecution.

"The SCOTUS should revisit this 1st Amendment free for all right and put a check on trials by media before everyone hates the system and resorts to a Kristallnacht."

Wow, remember when you respected freedom of speech, oh, a couple of days ago?

P.S. I'm still waiting for you to offer to adopt poor Casey, since I know that you wouldn't want to, you know, shun her. I just hope you're REALLY, REALLY used to getting lied to.

Posted by: Bill Otis | Jul 6, 2011 11:44:43 PM

get over it shes walking no matter what...shes maxed out done the time she will be free thursday.....ask yourself this DO YOU KNOW EXACTLY HOW HER LITTLE GIRL DIED? NO...therefore she walks on murder charges jury made right decision unless you want to move to North Korea then you can imprison and execute with no due process...thanks I am the man on the street.

Posted by: Hugh Riley | Jul 7, 2011 1:49:05 AM

Bill Otis:

"Maybe she can do a Dear Abby advice column with Anthony Wiener and John Edwards."

You may want to add Elliot Spitzer to that list. He got away with a crime, too, if you recalll.

MikeinCT:

I realize that you saw enough to find Casey Anthony guilty. The more important question is: Did the Jury see enough to convict her of murder and the rest of the felony counts? Based on the jury verdict, the jurors clearly did not. Fortunately, or unfotunately, Jury can do whatever it wants ("jury nullification") and does not have to give any reason whatsoever for its decision.

Also, I keep hearing: What about justice for Little Caylee? Well, unfortunately, the prosecution was never about "justice for Caylee." At bottom, it is all about an indictment, sufficient evidence to return a conviction that is beyond a "reaonable" doubt and whether or not the factfinder buys it. The term "reasonable" is so pliable and plastic that what seems reasonable to one person may not be reasonable to another. A criminal prosecution is never about justice; it is all about law and punishment. Oliver Wendell Homes famously said: "Young man, you are not in the halls of justice, but in a court of law." Such is our system, and I like it just the way it is. Personally, based on what I saw, I did not think - even for a split second - that the state carried its burden of proof. One has to bear in mind that there was so much media hype surrounding this what I consider a run-of-the-mill case that the expectations tended be very high on the guilty verdict. To make matters worse, many of the Legal Beagles (who perhaps got their JD and the like at a local 7-Eleven and for some unknown reason became talking heads on the boob tube) were spouting - a la logorrhea - their half-baked predictions, and certainly based on unsound legal principles, that they were all "outraged" when the vedict turned out be "not guilty." What outrages me is that these people were supposed be "journalists" and the media outlets claim to be fair-minded and unbiased "reporters" of the "facts" (not the truth, because truth is subect to one's interpretation). I wonder whatever happened to the objectivity of newspeople!

Posted by: John Marshall | Jul 7, 2011 2:55:36 AM

Imagine a trial in 1911. A white defendant is accused of killing a black man, a low value victim. The all white jury will never be satisfied that proof of murder has been presented. In 2011, it a white female killing a child, a feminist devalued victim, and getting a bunch of feminist indoctrinated pro-criminal jurors. Orlando has a high crime rate. It seems deserved.

Posted by: Supremacy Claus | Jul 7, 2011 6:21:24 AM

@John Marshall

Well said sir. You have summed it up exactly. The "prosecutors" on this blog just can't resign themselves to the fact that just because they, the prosecutor, says a defendant is guilty doesn't make it so. Do I think that she was guilty? In all likely hood yes but thank goodness for jurors who still believe that they have to prove it and in this case they did not.

Posted by: Thomas | Jul 7, 2011 2:14:41 PM

"Maybe [Casey Anthony] can do a Dear Abby advice column with Anthony Wiener and John Edwards. They can have guest pieces by Blago."

What? No love for John Ensign, David Vitter or Duke Cunningham? What do you have against Republican malefactors?

Posted by: C | Jul 8, 2011 9:08:28 AM

I am not a lawyer or a law student but I did watch the closing arguments and found this comments page when I was looking for a news item that I just heard mentioned as "Did prosecutors in Casey Anthony case break the law?" I haven't found what that item is referring to yet.

It was clear from the closing arguments that the prosecution behaved horrendously in this death penalty case. They hid witnesses like the guy who found the body, the father's former mistress who said he told her it was an "accident that snowballed" and the police computer forensics person who found only ONE search for chloroform. Instead of that last, they brought in a guy from Canada who claimed 80 searches for chloroform but it turned out those were really visits to myspace.

But isn't that preposterous? Why would someone do 80 searches for chloroform? It undercut the prosecutors that they could believe she did 80 searches for chloroform. Also, that the method of killing the child was suffocation by duct tape. Absurd. Did that house have no pillows? If there was a butter knife found with the body, the prosecutors would have claimed she stabbed the child. And the motive was that the child was becoming verbal and would tattle on mom, she was "starting to talk" (Starting? Per testimony, the child could count to 40 in Spanish; she must have been talking a while). What kind of a nincompoop would believe that someone kills their child because the child is starting to talk? Those nincompoop prosecutors in Florida.

There are laws in every state about "leaving the scene of an accident," I would imagine. Those laws are on the books because it is a normal thing to run away if you are at fault in an accident. Thats what happened here; thats what the jury believed.

Posted by: Karen | Jul 22, 2011 3:42:50 AM

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